HHS Announces Dangerous Moves to Strip Away Key Civil Rights Protections in Health Care and Social Services

Earlier this month, the U.S. Department of Health and Human Services (HHS) took two alarming steps to permit taxpayer-funded discrimination in our health care and social service systems. First, HHS announced a new draft policy (known as a proposed rule) that would allow for discrimination on the basis of sex, sexual orientation, gender identity, and religion in HHS-funded programs and also remove a requirement that HHS grantees recognize same-sex marriages in order to receive federal funding. Second, HHS issued a notice of nonenforcement declaring that it would immediately cease enforcing previous regulations preventing this type of discrimination. We are deeply concerned that both the proposed rule and the notice of nonenforcement will authorize discrimination against women, LGBTQ individuals, and religious minorities, including Jews.

These disturbing developments will negatively impact millions of Americans. Each year, HHS awards more than $500 billion per year in taxpayer-funded grants and contracts to a wide variety of health care and social service programs, such as adoption and foster care, cancer screenings, immunization programs, reproductive care, STD/STI and HIV/AIDS programs, Head Start and other pre-kindergarten programs, domestic violence hotlines, substance abuse programs, resettlement efforts for refugees and asylees, and community support services for seniors and people with disabilities. The administration’s immediate decision to ignore existing civil rights protections, combined with the potential to overturn previous regulations entirely, will restrict the ability of millions of people to access critical services. For example:

• Medical providers could deny abortion and contraceptives to people seeking reproductive care and refuse to provide transition-related care to transgender individuals
• Adoption and foster care agencies could refuse to place vulnerable children with LGBTQ couples or families (including Jews) who hold different religious beliefs than the agency, as has already occurred in South Carolina
• Community meal programs such as Meals on Wheels could refuse to deliver food to Jews, Muslims, and other religious communities who are elderly or have disabilities

As Jews, we also recognize that all people are created b’tzelem Elohim (in the image of God) and deserve dignity and respect regardless of their sex, sexual orientation, gender identity, or religion. The government has an obligation to ensure that all people can access health care and social services without threat of discrimination. Jewish tradition also teaches that human life has infinite value and that the preservation of life supersedes almost all other considerations. Our commitment to ensuring health care for all people derives from this basic principle. As Maimonides, a revered Jewish scholar and physician, teaches, “it is obligatory from the Torah for the physician to heal the sick” (Commentary on Mishnah Nedarim 4:4). Furthermore, providing health care is not just an obligation of the doctor, but rather for society as well. It is for this reason that Maimonides listed health care first on his list of the ten most important communal services a city must offer its residents if the city can be found worthy for a great scholar to live there (Mishneh Torah, Hilchot De’ot IV:23).

Finally, we are concerned about the problematic process through which these regulatory changes may be implemented. Although HHS is accepting comments from the public on the proposed rule for a period of 30 days, this time period is insufficient to allow individuals, advocacy organizations, and care providers to provide meaningful feedback on the proposal. Furthermore, HHS’ decision to immediately halt enforcement of these nondiscrimination regulations – which is tantamount to temporarily overturning the regulations – represents a clear abdication of its responsibility to protect civil rights. The government must refrain from using taxpayer money to discriminate against anyone.

Stay tuned for more information and an opportunity to submit your own comment on the proposed rule. For now, we urge HHS to immediately reconsider its decision to strip away key protections from millions of Americans.